Consensual sext: New sexting law gives options to Eagle County law enforcement

Colorado's new sexting law provides a menu of options for law enforcement, besides being forced to charge everything as a felony.

Colorado’s new Sexting Law summarized

• H.B. 17-1302 Sexting offense of posting a private image by a juvenile. The offense can be committed in 2 ways. The first way is if a juvenile, through digital or electronic means, knowingly distributes, displays, or publishes to the view of another person a sexually explicit image of a person other than himself or herself who is at least 14 years of age or is less than 4 years younger than the juvenile:

• Without the depicted person’s permission; or

• When the recipient did not solicit or request to be supplied with the image and suffered emotional distress; or

• When the juvenile knew or should have known that the depicted person had a reasonable expectation that the image would remain private.

The second way is if the juvenile knowingly distributes, displays, or publishes, to the view of another person who is at least 14 years of age or is less than 4 years younger than the juvenile, a sexually explicit image of himself or herself when the recipient did not solicit or request to be supplied with the image and suffered emotional distress. The offense is a class 2 misdemeanor; except that it is a class 1 misdemeanor if:

• The juvenile committed the offense with the intent to coerce, intimidate, threaten, or otherwise cause emotional distress to the depicted person; or

• The juvenile had previously posted a private image and completed a diversion program or education program for the act pursuant to the provisions of the bill or had a prior adjudication for posting a private image by a juvenile; or

• The juvenile distributed, displayed, or published 3 or more images that depicted 3 or more separate and distinct persons.

The act creates the criminal offense of possessing a private image by a juvenile that prohibits a juvenile, through digital or electronic means, from knowingly possessing a sexually explicit image of another person who is at least 14 years of age or is less than 4 years younger than the juvenile without the depicted person’s permission. It is not an offense if the juvenile:

• Took reasonable steps to either destroy or delete the image within 72 hours after initially viewing the image; or

• Reported the initial viewing of such image to law enforcement or a school resource officer within 72 hours after initially viewing the image.

The offense is a petty offense; except that it is a class 2 misdemeanor if the unsolicited possessor of the image possessed 10 or more separate images that depicted 3 or more separate and distinct persons.

The act creates a civil infraction of exchange of a private image by a juvenile if a juvenile, through digital or electronic means:

Knowingly sends a sexually explicit image or images of himself or herself to another person who is at least 14 years of age or is less than 4 years younger than the juvenile, and the image or images depict only the sender and no other person and the sender reasonably believed that the recipient had solicited or otherwise agreed to the transmittal of the image or images; or

Knowingly possesses a sexually explicit image or images of another person who is at least 14 years of age or is less than 4 years younger than the juvenile, and the image or images depict only the sender and no other person and the juvenile reasonably believed that the depicted person had transmitted the image or images or otherwise agreed to the transmittal of the image or images.

The civil infraction can be punished by participation in a program designed by the school safety resource center or other appropriate program addressing the risks and consequences of exchanging a sexually explicit image of a juvenile or a fine of up to $50, which may be waived by the court upon a showing of indigency.

If a juvenile’s conduct is limited to the elements of the petty offense of possession of a private image by a juvenile or limited to the elements of the civil infraction of exchange of a private image by a juvenile, then the juvenile cannot be charged with sexual exploitation of a child. If a juvenile is charged with posting a private image by a juvenile, he or she cannot be charged with sexual exploitation of a child. The act allows a juvenile to petition the court to not impose sex offender registration if he or she is charged with sexual exploitation of a child and the juvenile’s conduct satisfies posting a private image by a juvenile or possession of a private image by a juvenile. It is an affirmative defense to the two criminal offenses and the civil infraction if a juvenile is coerced, threatened, or intimated into distributing, displaying, publishing, possessing, or exchanging a sexually explicit image of a person under 18 years of age. The court must order the records of any of the 2 criminal offenses or civil infraction expunged within 42 days of completion of the sentence or program.

The act requires the school safety resource center to make available a sexting curriculum for school districts to use.

The act took effect January 1, 2018, and applies to offenses committed on or after said date.

GYPSUM — Colorado lawmakers wanted to give law enforcement some middle ground about sexting, somewhere between felonies-or-bust and a slap on the wrist.

It looks like they hit their target, said Tad Degen, a school resource officer with the Eagle County Sheriff's Office.

"The former law made everything a felony, either possession or distribution of child pornography," Degen said.

Under the old law state law, anyone who had an image on their phone of a nude person younger than 18 could have been charged with felony child exploitation. That felony meant that a sexting teen could also be forced to register as a sex offender. Sex offenders cannot apply for federal financial aid for college.

Under the old law, as soon as someone hit the send button they were guilty of distribution of child pornography, a felony. The new law provides a menu of options that do not force everyone to go straight to the felony option.

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"In this case, options are good," Degen said.

What is sexting?

Sexting refers to sending sexually explicit messages, such as a nude photograph or video of yourself or someone else, through electronic means — usually a smartphone. Many times it's a consensual exchange between two people.

Before the new law, if a school resource officer such as Degen or Megan Heil at Battle Mountain High School became aware of a teen couple sending nude photographs to one another — even if the exchange was consensual — that officer had to report the crime as sexual exploitation of a child.

"Under the old law, the child could face a serious felony prosecution, although no prosecutor in Colorado pursued these serious charges unless the offender committed something very aggravated," District Attorney Bruce Brown said. "The act clearly is aimed at recognizing that sexting among juveniles is not particularly aberrant behavior and that the focus of the law should be to minimize possible delinquent consequences to the child."

The new law separates sexting behavior into categories. For example, if two teens are caught sending consensual photographs of themselves to each other, then they are charged with a civil infraction — no jail time.

Penalties get tougher from there. If a kid sends nude photos of other teens without their permission, then the sender could face a class two misdemeanor — probation and fines.

In most cases in the 5th Judicial District, Brown said the child will never see a judge and instead will participate in a juvenile diversion program that emphasizes educating the child about the possible harm to him/herself and others by transmitting private images.

"The bill was a compromise and continued to recognize that sexting among children/teens should not be encouraged. Some so-called experts actually believe that the behavior should be encouraged, which is crazy thinking," Brown said.

Brown added that adults who transmit photos of children still face prosecution for serious felonies.

Not a big problem locally

It's not much of a problem in the schools Degen works with around Gypsum … at least not yet.

"About two cases per year come to our attention in this end of the valley. We've had one so far this school year," Degen said. "It's very low on the hierarchy."

Most school resource officers are happy to have a law that means business when it needs to but also offers options.

"It has some legal teeth but doesn't have to ruin their lives," Degen said.

Teen sexting became an issue in 2015 in Canon City, when more than 100 high school students were found with explicit images of other teens.

Colorado’s new Sexting Law summarized

• H.B. 17-1302 Sexting offense of posting a private image by a juvenile. The offense can be committed in 2 ways. The first way is if a juvenile, through digital or electronic means, knowingly distributes, displays, or publishes to the view of another person a sexually explicit image of a person other than himself or herself who is at least 14 years of age or is less than 4 years younger than the juvenile:

• Without the depicted person’s permission; or

• When the recipient did not solicit or request to be supplied with the image and suffered emotional distress; or

• When the juvenile knew or should have known that the depicted person had a reasonable expectation that the image would remain private.

The second way is if the juvenile knowingly distributes, displays, or publishes, to the view of another person who is at least 14 years of age or is less than 4 years younger than the juvenile, a sexually explicit image of himself or herself when the recipient did not solicit or request to be supplied with the image and suffered emotional distress. The offense is a class 2 misdemeanor; except that it is a class 1 misdemeanor if:

• The juvenile committed the offense with the intent to coerce, intimidate, threaten, or otherwise cause emotional distress to the depicted person; or

• The juvenile had previously posted a private image and completed a diversion program or education program for the act pursuant to the provisions of the bill or had a prior adjudication for posting a private image by a juvenile; or

• The juvenile distributed, displayed, or published 3 or more images that depicted 3 or more separate and distinct persons.

The act creates the criminal offense of possessing a private image by a juvenile that prohibits a juvenile, through digital or electronic means, from knowingly possessing a sexually explicit image of another person who is at least 14 years of age or is less than 4 years younger than the juvenile without the depicted person’s permission. It is not an offense if the juvenile:

• Took reasonable steps to either destroy or delete the image within 72 hours after initially viewing the image; or

• Reported the initial viewing of such image to law enforcement or a school resource officer within 72 hours after initially viewing the image.

The offense is a petty offense; except that it is a class 2 misdemeanor if the unsolicited possessor of the image possessed 10 or more separate images that depicted 3 or more separate and distinct persons.

The act creates a civil infraction of exchange of a private image by a juvenile if a juvenile, through digital or electronic means:

Knowingly sends a sexually explicit image or images of himself or herself to another person who is at least 14 years of age or is less than 4 years younger than the juvenile, and the image or images depict only the sender and no other person and the sender reasonably believed that the recipient had solicited or otherwise agreed to the transmittal of the image or images; or

Knowingly possesses a sexually explicit image or images of another person who is at least 14 years of age or is less than 4 years younger than the juvenile, and the image or images depict only the sender and no other person and the juvenile reasonably believed that the depicted person had transmitted the image or images or otherwise agreed to the transmittal of the image or images.

The civil infraction can be punished by participation in a program designed by the school safety resource center or other appropriate program addressing the risks and consequences of exchanging a sexually explicit image of a juvenile or a fine of up to $50, which may be waived by the court upon a showing of indigency.

If a juvenile’s conduct is limited to the elements of the petty offense of possession of a private image by a juvenile or limited to the elements of the civil infraction of exchange of a private image by a juvenile, then the juvenile cannot be charged with sexual exploitation of a child. If a juvenile is charged with posting a private image by a juvenile, he or she cannot be charged with sexual exploitation of a child. The act allows a juvenile to petition the court to not impose sex offender registration if he or she is charged with sexual exploitation of a child and the juvenile’s conduct satisfies posting a private image by a juvenile or possession of a private image by a juvenile. It is an affirmative defense to the two criminal offenses and the civil infraction if a juvenile is coerced, threatened, or intimated into distributing, displaying, publishing, possessing, or exchanging a sexually explicit image of a person under 18 years of age. The court must order the records of any of the 2 criminal offenses or civil infraction expunged within 42 days of completion of the sentence or program.

The act requires the school safety resource center to make available a sexting curriculum for school districts to use.

The act took effect January 1, 2018, and applies to offenses committed on or after said date.